Intellectual Property Law Commons^™

Masthead

UC Law SF Communications and Entertainment Journal

No abstract provided.

Conspiracy Speech: Reimagining The First Amendment In The Age Of Qanon, Justin Hyland

UC Law SF Communications and Entertainment Journal

No abstract provided.

We Didn’T Stop The Fire: Media Ownership Policy After Fcc V. Prometheus Radio Project, Christopher Terry, Eliezer Joseph Silberberg, Stephen Schmitz

UC Law SF Communications and Entertainment Journal

No abstract provided.

For An Anti-Discrimination Act For Cyberspace: Two-Sided Pricing, Walled Gardens, And The Depletion Of The Marketplace Of Ideas, Julien Mailland

UC Law SF Communications and Entertainment Journal

In the wake of renewed policy interest for the regulation of Internet gatekeepers, I argue that the U.S. Congress should pass a sweeping net neutrality regulation, an Anti-Discrimination Act for Cyberspace. Breaking with the tradition of siloed research which has seen similar proposals grounded in economics, computer science, history, political philosophy, and administrative and constitutional law, as separate matters, I offer a multi-disciplinary approach which combines these fields to draw new insights for Internet law and policy. I argue, with reference to leading Supreme Court cases, including Pruneyard Shopping Center v. Robins, that such a law would most likely pass …

“Ooh It Makes Me Wonder”: Do The Courts Finally Understand The Problems With Copyright Infringement And Pop Music?, Kate Camarata

Seattle University Law Review

The interaction between music and law is unique to copyright litigation. Music is “commonly regarded as a rule-free zone,” whereas the law is structured and, in essence, the “origin for rules.” This Note explores the inherent weaknesses with the substantial similarity test for copyright infringement as it relates to popular music through the lens of the recent Ninth Circuit case, Skidmore v. Led Zeppelin.

Part I of this Note reviews the history and purpose of copyright protection as well as explains the current tests utilized by courts in copyright infringement cases. Additionally, it will also show the difficulties of …

Sounds Of Science: Copyright Infringement In Ai Music Generator Outputs, Eric Sunray

Catholic University Journal of Law and Technology

The music business is no stranger to disruptive technology. The industry’s apparent comeback from the devastating downturn caused by illegal file sharing seems to have arrived just in time for what may be an even more disruptive technological phenomenon: artificial intelligence (“AI”). Much has been said about the implications of AI-generated music, ranging from issues of ownership, to rights of publicity. However, there has been surprisingly little discussion of infringement in the AI systems’ outputs. By examining the functionality of AI music generators through the lens of de minimis use case law, this paper will explain how the outputs of …

Seeing (Platforms) Like A State: Digital Legibility And Lessons For Platform Governance, Neil Chilson

Catholic University Journal of Law and Technology

The growing backlash against Big Tech companies is a symptom of digital technology increasing the world’s legibility. James C. Scott’s book, Seeing Like a State: How Certain Schemes to Improve the Human Condition Have Failed, explores how past governments responded to increased legibility – for good and for ill. This article shows how Scott’s historical lessons can guide governments and tech platforms as they seek to improve the human condition online.

Fairness, Copyright, And Video Games: Hate The Game, Not The Player, Shani Shisha

Fordham Intellectual Property, Media and Entertainment Law Journal

Creative communities often rely on social norms to regulate the production of creative content. Yet while an emerging body of literature has focused on isolated accounts of social norms operating in discrete, small-scale creative industries, no research to date has explored the social norms that pervade the world’s largest content microcosm—the sprawling video game community.

Now a veritable global phenomenon, the video game industry has recently grown to eclipse the music and motion picture industries. But despite its meteoric rise, the video game industry has provoked little attention from copyright scholars. This Article is the first to explore the shifting …

Trademarks In Conversation: Assessing Genericism After Booking.Com, Laura A. Heymann

Cardozo Arts & Entertainment Law Journal

It is a fundamental principle of U.S. trademark law that to serve as a trademark, a word or phrase must "indicate the source" of the goods or services with which it is associated and, conversely, that a term that is understood to be the common name of a good or service is "generic" and cannot be protected as a trademark. Yet it still seems difficult to determine exactly what each concept means, particularly when the actual "source" of any goods or services might be opaque to consumers.

In part, this difficulty comes from the fact that status as a trademark …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents and Special Thanks.

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

What's In Your Box? Removing The Tiffany Standard Of Knowledge In Online Marketplaces, Hayley Dunn

Catholic University Journal of Law and Technology

Online shopping is a quintessential component of modern life. Millions of products from trusted brands are conveniently available at single-stop online marketplaces such as Amazon, eBay, and Alibaba with the click of a button from the comfort of home. But is the product delivered to the consumer’s front door actually the same as the one found on a store shelf? Pervasive trademark infringement in online marketplaces makes the answer to this question difficult, that is, until the consumer experiences negative consequences from a counterfeited product.

Under Tiffany (NJ) Inc. v. eBay, Inc., online marketplaces face almost no liability …

Payin’ The Price To Grab A Slice…Of Music! A Guide To Music Licensing For Businesses, Nila Jackson

Cybaris®

This paper provides information that may be useful to people seeking to acquire music licenses for their places of business and is primarily focused on licensing for food and drink establishments. However, other business types that use live or recorded music in their establishments may find the information useful as well. The purpose of this paper is to provide a brief history of copyright law, and an overview of music licensing to give business owners a better understanding of copyright as it relates to public performance.

Panel 2: Distinctiveness In The Age Of The Internet, Barton Beebe, David H. Bernstein, Laura A. Heymann, Alexandra J. Roberts, Felix Wu

Cardozo Arts & Entertainment Law Journal

The article examines the role of consumer perception in determining whether a term is generic or distinctive for trademark purposes, emphasizing that words are context-dependent and not inherently generic or distinctive. It highlights the importance of assessing consumer understanding and use of terms in specific contexts, as well as the need for courts to consider multiple forms of evidence, including surveys, mark talk, and broader marketplace data, to make informed decisions. The analysis also touches on policy considerations, such as keeping certain features free for competition and consumer use, which may influence legal outcomes.

Infinite Setlist: Analyzing Pioneer Dj’S Catalogue Streaming Partnerships With Beatport And Soundcloud, Nicholas Rivera

Cybaris®

The purpose of this paper is to examine the partnerships Rekordbox has with SoundCloud and Beatport, determine if user agreements of each platform legally allow the partnerships to occur, what the implications are of using the music streaming service for live performances at venues, what the implications are of streaming music for live streamed performances via the internet, satellite radio, and terrestrial radio, and determine which types of copyright royalties need to be paid to who and by whom.

Independent Filmmaking In The Final Frontier: Intellectual Property Issues With Making Independent Films In Space, Jesse Green

Cybaris®

No abstract provided.

Free Speech In The Modern Age, [email protected]

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Faster Fashion: The Piracy Paradox And Its Perils, Kal Raustiala, Christopher Jon Sprigman

Cardozo Arts & Entertainment Law Journal

The article introduces the "piracy paradox," arguing that the fashion industry's ability to thrive despite widespread copying is due to the freedom to copy, which accelerates the fashion cycle and drives creativity. It challenges the conventional view that intellectual property rights are essential for innovation. The authors also address critiques of fast fashion's environmental, labor, and social impacts, suggesting these issues are not unique to fashion and should be resolved through broader policies rather than intellectual property law.

The Piracy Paradox And Indigenous Fashion, Aman K. Gebru

Cardozo Arts & Entertainment Law Journal

The conventional justification of intellectual property laws is that recognizing exclusive rights is indispensable for encouraging creativity. The Piracy Paradox challenged this assumption by providing strong evidence of the fashion industry's robust creativity in the face of widespread copying of designs, thereby suggesting that some types of creativity may not need exclusive rights. This Article examines the applicability of the piracy paradox in the context of non-Western cultures. It categorizes indigenous fashion as those open to commercialization and those closed to it. With some important caveats, this Article suggests the piracy paradox may apply to indigenous fashion that is open …

Opening Remarks, Anna Antonova, Michael Burstein

Cardozo Arts & Entertainment Law Journal

The article celebrates the 75th anniversary of the Lanham Act, reflecting on its enduring influence on trademark law while addressing its evolution in response to new legal and technological challenges. It highlights the symposium's exploration of the Act's history, its adaptation to modern issues such as internet-related disputes and First Amendment concerns, and its continued relevance in shaping intellectual property law. The piece also underscores the role of the Cardozo Arts & Entertainment Law Journal as a leading platform for scholarly discourse in intellectual property and related fields.

Fulfilling The Right To Follow: Using Blockchain To Enforce The Artist's Resale Right, Zhao Zhao

Cardozo Arts & Entertainment Law Journal

Visual artists in countries that do not recognize the artist's resale right are at an economic disadvantage, while some countries that recognize the right experience practical difficulties in identifying and tracking resales that are subject to royalty payments for artists. As blockchain technology becomes increasingly applied to the creative industries, the full extent of its potential in enforcing droit de suite by improving the traceability of physical artwork has yet to be realized. Blockchain can be an effective mechanism for enforcing the artist's resale right as an alternative to collective management organizations. Through an analysis of the ability of blockchain …

We're All Pirates Now: Making Do In A Precarious Ip Ecosystem, Jessica Silbey

Cardozo Arts & Entertainment Law Journal

Fifteen years after The Piracy Paradox explained how most anticopying protection is unnecessary for a thriving fashion industry, we face another piracy paradox: with broader and stronger IP laws and a digital economy in which IP enforcement is more draconian than ever, what explains the ubiquity of everyday copying, sharing, re-making, and re-mixing practices that are the lifeblood of the Internet's expressive and innovative ecosystems? Drawing on empirical data from a decade of research, this short essay provides two examples ofthis "new piracy paradox ": a legal regime that ostensibly punishes piracy in a culture in which it is unavoidable. …

Panel 1: The Scope And Strength Of Trademark Law, Megan K. Bannigan, Leah Chan Grinvald, Theodore H. Davis Jr., Mark P. Mckenna, Felix Wu

Cardozo Arts & Entertainment Law Journal

The article examines the evolution and effectiveness of the Lanham Act, focusing on its impact on trademark law. It discusses how the Act's original goals, such as providing notice of trademark rights and ensuring uniformity in a national commerce context, have been partially met due to the lack of mandatory registration and judicial interpretations that have expanded trademark protections beyond initial intentions. The panelists highlight the tension between the procedural nature of the Act and the substantive changes introduced by courts, leading to both underenforcement and overenforcement issues.

"If You Can Afford Me": Reconceptualizing Expert Testimony Offered To Calculate Music Copyright Damages, Amanda Inglesh

Cardozo Arts & Entertainment Law Journal

The note argues that expert testimony in music copyright infringement cases often leads to unreliable damages calculations and undue prejudice, undermining the fairness and balance intended by copyright law. It advocates for stricter evidentiary standards and the use of neutral, court-appointed experts to address these issues and ensure that damages awards align with the purpose of copyright law, which is to compensate creators without stifling artistic creativity.

Extraterritorial Damages In Patent Law, Thomas F. Cotter

Cardozo Arts & Entertainment Law Journal

In 2018, the Supreme Court in WesternGeco LLC v. ION Geophysical Corp. held that the owner of a U.S. patent could recover its lost profit on sales it would have made outside the United States, but for the defendant's violation of 35 U.S.C. § 271()(2) a rarely used provision of the Patent Act that prohibits, subject to certain conditions, the export of patented components for combination abroad. The Court left open the question of whether owners also can recover extraterritorial damages resulting from the (much more common) setting in which the defendant is accused of an initial act of making, …

The Ordinary Authors Of The Bureau Of New Plays: Copyright And Reallocating Authority In The American Theatre (1936-1949), Brent Salter

Cardozo Arts & Entertainment Law Journal

This Article examines the brief history of the Bureau of New Plays, a nonprofit enterprise funded in 1936 by seven major Hollywood film studios and administered by the Theatre Guild's Theresa Helburn, to identify and develop talented young American playwrights. A study of the Bureau of New Plays provides a window into the authority that playwrights, and particularly younger writers, exercised over the work they created. In one respect, the establishment of the Bureau of New Plays complemented American copyright's general trajectory toward the expansion of the rights of the individual author, and in the context of the theatre the …

Post-Etherdelta: Clarifying Liabilities For Cryptocurrency Exchanges And Market Participants, Robert Sistoso

Cardozo Arts & Entertainment Law Journal

The rise of cryptocurrencies has led to the development of both centralized and decentralized exchanges, which face significant regulatory challenges under U.S. securities laws. The SEC has applied the Howey test to determine whether tokens qualify as securities, and its enforcement actions, such as against EtherDelta, highlight the need for clarity on the liabilities of developers, operators, and users in decentralized systems. The article advocates for the SEC to refine its regulatory approach to balance investor protection with the promotion of innovation in blockchain technology.

Fashion's Brand Heritage, Cultural Heritage, And The Piracy Paradox, Felicia Caponigri

Cardozo Arts & Entertainment Law Journal

This Article explores the role that heritage has on our understanding of the appropriateness of intellectual property protection for fashion designs in light of Christopher Sprigman and Kal Raustiala's seminal work in The Piracy Paradox. At times, heritage seems to both reinforce Sprigman and Raustiala's argument that fashion thrives in a low-IP regime and, at other times, heritage challenges that argument. Taking Italian fashion design as a case study, this Article considers the intersection of brand heritage, cultural heritage, and intellectual property law and makes three central observations. First, that fashion designs reflecting brand heritage thrive in a low-IP …

Where Code Is Chaos: Content Platforms And Algorithmic Incentives, Amy L. Landers

Cardozo Arts & Entertainment Law Journal

This Article considers the intersection of the piracy paradox in the context of the attention economy, the algorithmic behavior of content platforms, and intellectual property's incentive theory. This inquiry is framed by a micro-history of a micro-dispute between two micro-celebrities about a color-block sweatshirt design of debatable originality. Because purchases are largely made to engage and support the creator as interactive communication, the arguments for legal protection for influencer merchandise are weak. Therefore, this field appears to be an ideal space for the operation of the piracy paradox.

This conclusion might be persuasive if anti-copying norms or other considerations minimized …

Trademark Enforcement And Statutory Incentives, Leah Chan Grinvald

Cardozo Arts & Entertainment Law Journal

The combination of the recent U.S. Supreme Court case, Romag Fasteners v. Fossil Group, Inc., and the diamond anniversary of the Lanham Act provides good grounds to reflect on how trademark enforcement and statutory incentives have evolved through the years. Although enforcement of one's trademarks through the use of the courts can be traced back to England in the 1790s, trademark litigation and other enforcement activities have exploded, in relative terms, since the enactment of the Lanham Act in 1946. Although not subject to an easy empirical correlation, this trend suggests that the statute has had an impact on increasing …